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Originally Released November
2008
A
Federal Appeals Court has upheld a wife’s right to protect her
savings from her husband’s nursing home costs.
Josephine
James consulted with Marshall, Parker & Associates in August 2005
when her husband entered a nursing home. Like many “community
spouses” she was concerned that the monthly cost of her husband’s
care would destroy her financial security.
Federal
Medicaid law has long allowed “community spouses” like Mrs. James
to protect their assets through the purchase of a specialized
“Medicaid Annuity.” The annuity works by converting excess
resources that would otherwise have to be spent on nursing home care
into protected income that the community spouse can keep.
Mrs.
James purchased an annuity that met the Medicaid requirements. But,
when Mr. James applied for Medicaid in September 2005, his application
was denied by the Pennsylvania Department of Public Welfare (DPW).
This was surprising because a federal court had previously ordered DPW
to grant eligibility in a similar case.
The
James family, represented by Marshall, Parker & Associates’
Attorney Matthew J. Parker, filed an action in federal court to force
DPW to grant Mr. James the benefits to which he was entitled under the
Medicaid laws. In a November 12, 2008 decision the Third Circuit Court
of Appeals has upheld Mr. James right to Medicaid and Mrs. James right
to protect her savings from her husband’s nursing home costs.
“This
decision helps preserve the rights and dignity of older adults in
Pennsylvania,” said Attorney Parker.
“It is wrong for us to take people life savings away because
their husband or wife gets sick and needs nursing home care. Federal
law grants financial protections to community spouses like Mrs. James.
This case was about making sure the government gives seniors the
protections the law allows. That’s our job and that’s why we are
here.”
Parker
also noted that “most annuities do not meet Medicaid requirements.
People should not engage in this kind of planning without the
help of an experienced elder law attorney.”
The
decision, James v. Richman,
is binding throughout Pennsylvania, New Jersey and Delaware, and
should influence courts in other states as well.
Attorney
Parker is a principal with the Law Firm of Marshall, Parker &
Associates.
He is a Certified Elder Law Attorney by the National Elder Law
Foundation, a distinction held by less than fifty attorneys in
Pennsylvania. He
is a magna cum laude graduate of the University of Pittsburgh and he
received his law degree from Dickinson School of Law in 1995.
Attorney Parker has also been named a “2008 Super Lawyer”
in the field of elder law.
He resides in Loyalsock Township.
Founded
in 1980, the Law Firm of Marshall, Parker & Associates has become
widely recognized throughout the country as a leader in providing
expert estate planning and elder care planning services to preserve
the rights and dignity of seniors. The firm has offices in
Williamsport, Jersey Shore, Scranton and Wilkes-Barre. The case and
additional information is available on the firm’s website at www.paelderlaw.com/James_Decision_2008.html.
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